60 Neb. 595 | Neb. | 1900
On September 20, 1892, an order allowing a claim against the estate of Margaret L. McKenna, plaintiff in error, and in favor of Mrs. Sarah A. McCormick, defendant in error, was entered by the probate court of Sarpy county. Because of an alleged informality or defect in the form of the order of allowance, litigation between the estate and the claimant resulted, wherein it was determined by this court, in McCormick v. McCormick, 53 Nebr., 255, that the said judgment or order of allowance was., in all respects, a valid and binding judgment against the estate. During the pendency of the suit first brought to test the validity of the judgment, proceedings were instituted by the administrator to vacate and annul the order allowing the claim, under the provisions of section 602 of the Code of Civil Procedure. The motion to vacate the order allowing the claim was filed September 3, 1895, and was based upon the following grounds: “First, that the order of allowance was obtained and entered through an irregularity, namely, that said order was entered as of Sept. 20, 1892, after the hearing of said claim had been continued for a period of 30 days, and was also entered without judgment of allowance ever having been had on said claim. Second, said order purporting to have been an order of allowance, and purporting to have been made Sept. 20,1892, and entered in record “C,” at page 466, was entered through mistake of said county judge acting as clerk of said county court of Sarpy county.” In support of the motion is an affidavit of the administrator, who says that he was at the office of the county judge on September 20, 1892, and that no hearing was had on said claim, and that no parties appeared on behalf of the claimant at the hour set, and
It is next claimed that the finding and judgment of the district court are contrary to law, and not supported by the evidence, and that the order of vacation by the probate court appealed from should have been affirmed. These proceedings are claimed, and evidently were intended to be regarded as brought under the third subdivision of section 602 of the Code of Civil Procedure, relating to the vacation of judgments and orders after the terms in which they are rendered. By this subdivision and other sections to which it is related a judgment or order may be vacated or modified, by motion, npon reasonable notice to the adverse party or his attorney in the action, “for mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order,” if proceedings are begun for that purpose within three years.
Whether or not the grounds upon which the application is based in the present case come within the provisions of the section quoted must be determined from the record before us. The mere ipse dixit of the parties that such is the case will not suffice. One of the grounds upon which the motion is made, is that the order of allowance was entered without a judgment of allowance ever having been had. This question has already been decided on the prior appeal, and the order adjudged to be a valid and complete judgment in all respects. McCormick v. McCormick, supra.
The ground urged in the second paragraph of the motion is also untenable. The only evidence of the rendition of the judgment is the record itself. This record was made by the probate judge acting as his own clerk. It can hardly be said that such an entry is an act of “mistake, neglect, or omission of the clerk,” within the meaning of the subdivision quoted.
We are thus brought to the only remaining ground mentioned in the motion, viz., “irregularity in obtaining the judgment or order,” Can it be said that this was
In 1 Freeman, Judgments, sec. 97, it is said: “A judgment is said to be irregular whenever it is not entered in accordance with the practice and course of proceedings where it was rendered.” The irregularity here complained of is that the judgment was rendered after the case was continued. If this be true, and it was rendered inadvertently, the judgment was rendered “before the action regularly stood for trial,” and a motion to vacate must be made in the first three days of the succeeding term. Code of Civil Procedure, sec. 604. The order of allowance was not entered irregularly in the sense that it was obtained contrary to the practice and course of proceedings had in such cases in the probate courts of the state. The notice to present claims against the estate had been given, and the claim in pursuance thereof had been filed for allowance. The time set for allowance of claims had arrived, and the court, in its regular course of procedure, was then empowered to act upon and allow the claim. The record shows no continuance and no application for one. If, however, as is attempted to be established by the affidavits filed in support of the motion to vacate the judgment, a continuance of the hearing of the claim was had, and notwithstanding such continuance a judgment was entered on the same day, and further continuances announced, as stated, when the judgment had already been entered, then a fraud was practiced on the administrator, whereby he was prevented from making a defense to the claim. In such a case, the remedy would be, if brought under the provisions of the
From the record we are disposed to the view that the conclusion reached on the trial of the case in the district court is sustained by the evidence, and is in conformity with law. The judgment is accordingly
Affirmed.